Punjab-Haryana High Court
Chamel Singh vs Satish Kumar And Others on 6 May, 2013
Bench: Jasbir Singh, Rakesh Kumar Jain
CRM-A No. 99-MA of 2013 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
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CRM-A No. 99-MA of 2013 Date of decision : 6.5.2013 Chamel Singh ........Applicant-appellant Vs. Satish Kumar and others .......Respondents CORAM: Hon'ble Mr. Justice Jasbir Singh, Acting Chief Justice Hon'ble Mr. Justice Rakesh Kumar Jain Present:- Mr. Suvineet Sharma, Advocate, for the applicant-appellant
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Jasbir Singh, ACJ.
Applicant Chamel Singh has filed this application under Section 378(4) read with Section 372 Cr.P.C. seeking leave to file an appeal against judgment dated 13.12.2012 acquitting respondents No.1 to 3 of the charges framed against them.
It was an allegation against the above respondents-accused that they, in furtherance of their common intention, had committed murder of Krishan son of the applicant, by giving him injuries on 22.3.2011.
On a statement Ex.PJ, made by the applicant, FIR No. 116 dated 22.3.2011, Police Station Sadar Karnal, for commission of offences punishable under Sections 302 and 323/34 IPC, was registered against the respondents-accused.
The process of investigation was started on receipt of a telephonic information in the police station on 22.3.2011, intimating that CRM-A No. 99-MA of 2013 -2- Krishan (deceased) and Chamel Singh were admitted in General Hospital, Karnal with injuries. ASI Ram Phal (PW-12) along with ASI Joga Singh (PW-8) went to the hospital, moved an application Ex.PCC to the doctor to know about the fitness of the applicant to make a statement. On getting positive response, statement of the applicant was recorded.
The trial Judge has noted the following facts from statement made by the applicant :-
"That on 22.3.2011 at about 5.30 P.M., he having returned to village Picholia was parking his scooter in his dera when accused Pawan, Satish Kumar and Shiv Kumar came there from behind. Pawan hit him with barchhi like lathi. Satish gave a gandasi blow on right arm. He fell down and Shiv Kumar gave gandasi blow on the forehead above left eye. He raised alarm and Krishan his son came to his rescue. When Pawan Kumar gave lalkara that Chamel had fallen, caught Krishan, he should not go alive. Satish rushed towards Krishan Kumar and caught him. Shiv Kumar gave a gandasi blow from blunt side in his head and Pawan also gave a barchhi blow in the head of his son who fell down. Accused treating Krishan as dead and seeing villagers coming at the spot ran away with their respective weapons. This occurrence was witnessed by his wife Chandro Devi and daughter in law Suman. Illam Singh and Jasbir Panch came there and took them to hospital for treatment."
It was case of the prosecution that Krishan died during the course of treatment. The injuries were caused to the complainant party by the respondents-accused on account of existing dispute regarding some land.
The Investigating Officer went to the place of occurrence, got CRM-A No. 99-MA of 2013 -3- prepared a rough site plan of the place of occurrence with correct marginal notes. On 23.3.2011 Sub Inspector Balwan Singh (PW-13) prepared inquest proceedings on the dead body of Krishan and sent it for post mortem examination.
From the place of occurrence, the Investigating Officer, took into possession blood stained earth, blood stained pieces of dry wood, two broken teeth, which were lying at the spot, against recovery memos. The respondents-accused were arrested and on interrogation, they suffered disclosure statements, which led to the recovery of weapons of offence.
The Investigating Officer recorded statements of the witnesses and submitted the final report in Court. Copies of the documents were supplied to the respondents-accused as per norms. Case was committed to the competent Court for trial vide order dated 22.7.2011. The respondents- accused were charge sheeted, to which they pleaded not guilty and claimed trial. The prosecution produced 13 witnesses and also brought on record documentary evidence to prove its case.
On conclusion of prosecution's evidence, statements of the respondents-accused were recorded under Section 313 Cr.P.C. Incriminating evidence on record was put to them, which they denied, claimed innocence and false implication. They also led evidence in defence.
The occurrence in this case is virtually admitted. Members of both the parties received injuries at the time of alleged occurrence. As per deposition made by Dr. Gaurav Dhawan (PW-2), the following injuries were found on the persons of Krishan (deceased) at the time of his medical CRM-A No. 99-MA of 2013 -4- examination :-
"1. Lacerated wound in frontal-parietal region 3 x 1 cm in size, bone deep;
2. Lacerated wound in right temporal region size 2 cm x 1 cm, bone deep."
After death, when post mortem was conducted, total 7 injuries were found at the person of the deceased, which are as follows :-
"1. Lacerated wound in right temporal region of size 2 cm x 1 cm bone deep present, 7 cm above the right pinna;
2. Lacerated wound in fronto parietal region in mid line of size 3 cm x 1 cm bone deep present about 9 cm above glabella;
3. Bluish black contusion of sizes 12 cm x 4 cm and 11 cm x 2 cm over the left scapular region;
4. Abrasion of size 2 cm x 2 cm about 2 cm above right eye brow on medial side;
5. Bluish contusion encircling left eye covering whole upper and lower eye lid;
6. Bluish contusion over right lower eye lid;
7. Multiple abrasion present over the ose with largest measuring 3 cm x 1 cm and smallest, measuring .5 cm x .5 cm."
At the person of Chamel Singh (PW-4), following injuries were noticed, at the time of his medical examination :-
"1. Lacerated wound in parietal-occipital region of skull, size 8 cm x 1.5 cm, bone deep;
2. Abrasion of size 9 cm x 1 cm on left arm;
3. Lacerated wound above left eye brow of size 2 cm x 1 cm;
4. Lacerated wound of size 3 cm x 1 cm above left CRM-A No. 99-MA of 2013 -5- forearm on dorsal aspect."
It is an admitted fact that members of the respondents-accused party were also admitted in the hospital at that very moment.
During investigation, following injuries were found at the person of Pawan Kumar -respondent No.2 :-
"1. Lacerated wound of size 1.5 cm x .3 cm away from foot of nose on the left side of scalp;
2. Swelling present on the right wrist joint."
Similarly, at the person of Satish Kumar - respondent No.1, following injuries were found :-
"1. Lacerated wound of size .8 cm x .3 cm on the scalp above from right pinna fresh blood present.
2. Bruise of size 3 cm x 2 cm present on left elbow swelling present on the left elbow. Advised X-ray of left elbow and surgeon opinion."
At the person of Shiv Kumar-respondent No.3, following injuries were noticed :-
"1. Abrasion of size 0.4 cm x 0.3 cm on prosimal inter phalingeal join of left middle finger and of size .3 cm x .3 cm on index finger of the left hand."
DW-1 Dr. Satish Kumar also deposed that injuries were also received by Savitri, which are as follows :-
"1. Swelling present on the left side of face on zygomatic area. Advised X-ray of left zygomatic area;
2. Bruise of size 1.5 cm x 1.2 cm present on medial angle of left scapula;
3. Another bruise of size 1.5 cm x 1 cm present on left shoulder;CRM-A No. 99-MA of 2013 -6-
4. Pealed epiderm present on the right elbow movements are normal."
It is apparent from the record that despite being armed with sharp edged weapons, the weapons were not used from the sharp side by the respondents-accused. The bara/out houses of the complainant and the respondents-accused party are situated near to each other.
The trial Judge on appraisal of evidence found case of the prosecution doubtful, benefit of which was given to the respondents- accused by ordering their acquittal.
It was rightly noticed by the trial Court that the prosecution has furnished no explanation for injuries found at the person of the respondents and Savitri. They were also lying admitted in the hospital at that very moment when the applicant and his son Krishan were medico legally examined.
In their defence, it was specifically stated by the respondents- accused that the complainant party was the aggressor party and the injuries were caused to the complainant and his son in private defence of their person and property.
The trial Judge on appraisal of evidence, site plans produced by both the parties, rightly came to a conclusion that members of the complainant party were at fault. In that regard it was observed as under :-
"In his complaint Ex.PJ, complainant Chamel Singh has stated that he was parking his scooter in his bara when Pawan, Satish and Shiv Kumar sons of Jeet Singh came. As per complainant place of occurrence is, thus, bara of complainant Chamel Singh. Ex.PSS is the site plan and the scaled site plan CRM-A No. 99-MA of 2013 -7- is Ex.PL. There is no difference in these two site plans. In these site plans property is shown in the shape of rectangle adjacent to pucca road leading to village Jani from Bus stand, Picholia. PW-6 EHC Vir Shakti Singh deposing that he had visited the place of occurrence had categorically stated in his cross examination that he had mentioned Point ABCD and E in the site plan Ex.PL as the same were told to him by ASI Ram Phal. Whatever, ASI Ram Phal told him about these points, he accordingly shown them in the site plan. Point A is the place where Chamel Singh was parking the scooter, Point B is the place where Chamel Singh fell down and there is also blood, Point C is the blood stained wood and Mark D which is on the Northern side of the plot in front of the entry, Krishan Kumar sustained injuries and fell down. At Point Mark E which is also outside the plot and on the road near the entry to the plot, broken tooth were found lying. Suffice to say here that to whom these two broken teeth belong is not known. It is not the case of the prosecution that teeth of any of the injured or deceased were broken in the incident. As per PW8 ASI Joga Singh one tooth apart from other things was also lifted from the place of occurrence where as according to PW13 Sub Inspector Balwan Singh, the Investigating Officer, he found two broken teeth lying on the spot which were seized vide memo Ex.PN. So this reflects how badly the investigation of the case has been conducted.
21. Be that as it may, the prosecution has shown the place of occurrence in rectangle shape. The defence giving a different version has produced its own two site plans Ex.D-1 and Ex. D-2. Ex.D-1 is the ak-shijra showing killa No. 55/19 and adjacent to it are killa numbers 21/1, 21/2 and 22/1 on its Southern side. Scaled site plan Ex. D-2 is also placed on the file. PW3 Chamel Singh, complainant having seen ak-shijra Ex. D-1 in his cross examination admitted that he was in CRM-A No. 99-MA of 2013 -8- possession of khasra No. 55/19 which is Mark A in Ex. D-1. He further admitted that panchayat land bearing khasra No.21/1 is in possession of Jeet Ram, Lal Singh and Partap which is situated at Point B in ak-shijra Ex. D-1. It is also admitted by him that khasra No. 21/2, 22/1 and 23/1 are in possession of Jeet Ram as shown in ak-shijra Ex.D-1 and also that pucca road in front of killa No.19 and 18 of rect. No.15 in Northern Eastern side. He admitted location of khasra number and road as correctly shown in Ex.D-1. He also admitted site plan Ex.D-2 to be correct. He has admitted that his land bearing khasra No. 55/19 is situated at Point X in the scaled site plan Ex. D-2 shown to him in the court. It is relevant to note that this is in triangular shape and tallies with the triangular shown in ak-shijra Ex.D-1. It is in his statement that he has constructed room and varandah in khasra No. 19. He further admitted that Jeet Ram had constructed his residential house in Khasra No.21/2 as shown in Ex.D-2 and that the house of Jeet Ram is shown at Point A and panchayat land at Point B. There is no intervening wall between killa Nos. 19 and 21/1.
22. PW-3 Chamel Singh further admitted that cattle shed belonging to Jeet Ram is in khasra No.21/1. He volunteered to state that the shed had been constructed on 7.1.2011. It is correctly shown at Point C in Ex.D-2. At another place he admitted that fight had taken place at the disputed place. He had fallen on the wood and bushes lying at Point D in Ex. D-
2. This point D is on the land of the accused. He volunteered to state that he had not gone there to ask the accused persons to remove the batoras etc. However, he was having order of the court directing Jit Ram to remove batoras etc. from the disputed land. But no order has been collected and produced on record and there is nothing on record to show that any such order was ever passed by any court. He further deposed that CRM-A No. 99-MA of 2013 -9- fight had taken place at a distance of 25-30' from baithak and cattle shed of Jit Ram which is Mark E in Ex.D-2. He deposed that his son Krishan had also tried to save him from the hands of the accused when he fell down on the wood belonging to the accused. PW10 Illam Singh admitted that site plan Ex.D-2 is correct as per the existing position at the spot. So, from this evidence in the shape of admission of the prosecution witnesses itself it is clear that the occurrence had taken place over the land in possession of Jeet Ram, father of the accused."
Then it was observed as under :-
"25. Now the question arises as to which party was aggressor. For the purpose of determining the point of aggressor, explanation of complainant Chamel Singh is to be considered. He has tried to explain his presence on the land of the accused. Admitting his presence at Point D in site plan Ex. D-2, he deposed that he had not gone there to ask the accused to remove the batoras etc. but he was having orders of the court directing Jeet Ram to remove batoras etc. from the disputed land. But the prosecution has failed to prove the existence of any such order what to say of its collection by the Investigating Officer during investigation from the complainant or the court. Meaning thereby complainant Chamel Singh had no right or reason or justification for going to the land of the accused. Krishan son of the complainant reached within one minute after Chamel Singh raised alarm. His son Krishan was present in the baithak at that time when he came to park the scooter. As per Chamel Singh the fight had continued hardly for two minutes. That would show that Chamel Singh and Krishan were in immediate presence of each other. The fight, as per Chamel Singh took place at a distance fo 25-30' from the baithak and cattle shed of Jeet CRM-A No. 99-MA of 2013 -10- Ram at Point E in Ex.D-2. Thus, complainant Chamel Singh and his son Krishan were almost together at the time of the fight. Chamel Singh without having any reason or justification had gone on the land of the accused with his son Krishan Kumar."
It was also noticed that the prosecution has failed to establish any motive on the part of the respondents-accused to commit the crime.
By taking note of injuries received by the respondent-accused party, the trial Judge rightly came to a conclusion that the prosecution has failed to explain those injuries by doing an act of suppression. After noting the evidence on record, it was rightly said that the Investigating Agency has changed the place of occurrence in the site plan. The right of private defence taken by the respondents-accused was also accepted to be correct by the trial Court by observing as under :-
"33. From the above discussion, it is fully established that the complainant party had gone to the land of the accused and in the fight the accused party had also sustained injuries which have not been explained. The defence has also placed on record copy of application dated 25.3.2011 Ex.D-11 given by accused Pawan Kumar to IG Police, Rohtak Range informing him that Chamel Singh wanted to encroach on their land. Demarcation of the land was done by Kanungo on 22.2.2011 and at about 5.30 P.M. Chamel Singh, his son Sushil and Krishan had caused injuries to him, his brothers Shiv Kumar, Satish and mother Savitri for getting the demarcation of the land. They also caused injuries to the other party in their defence. They got themselves medico legally examined and informed the police but the police having colluded with Chamel Singh etc. is not taking any CRM-A No. 99-MA of 2013 -11- action against them and the place of occurrence has also been changed. Copy of letter was sent to DGP, Haryana also which is Ex.D-12. On 24.3.2011 they had filed a similar application Ex.D-13 before SP Karnal and on the top all these facts were brought to the notice of learned Illaqa Magistrate, Karnal by accused Satish vide application Ex.D-14 for surrender and providing medical aid to him. The irresistible conclusion, in the facts and circumstances of the case is that it was complainant party who is aggressor and the accused party acted in their defence."
Broken teeth were recovered at the spot. The trial Court noticed that it is no body's case that teeth of any member of the complainant party were broken at the time of alleged occurrence. By noting as above, it was said that the prosecution has not come out with true and correct facts of the case. The trial Court has given good reasons in Para No.38 onwards of the Judgment under challenge to say that the respondents-accused have not exceeded their right of private defence of life and property when causing injuries to the members of complainant party.
This Court feels that the trial Judge has thrashed the entire evidence in a proper manner. The view taken by the Court below is perfectly justified and as per evidence on record.
Their Lordships of the Supreme Court in 'Allarakha K.Mansuri v. State of Gujarat, 2002(1) RCR (Criminal) 748', held that where, in a case, two views are possible, the one which favours the accused, has to be adopted by the Court.
A Division Bench of this Court in 'State of Punjab v. Hansa CRM-A No. 99-MA of 2013 -12- Singh, 2001(1) RCR (Criminal) 775', while dealing with an appeal against acquittal, has opined as under:-
"We are of the opinion that the matter would have to be examined in the light of the observations of the Hon'ble Supreme Court in Ashok Kumar v. State of Rajasthan, 1991 (1) SCC 166, which are that interference in an appeal against acquittal would be called for only if the judgment under appeal were perverse or based on a mis-reading of the evidence and merely because the appellate Court was inclined to take a different view, could not be a reason calling for interference."
Similarly, in State of 'Goa v. Sanjay Thakran, (2007) 3 SCC 755', and in 'Chandrappa v. State of Karnataka, (2007) 4 SCC 415', it was held that where, in a case, two views are possible, the one which favours the accused has to be adopted by the Court.
In 'Mrinal Das & others v. The State of Tripura, 2011(9) SCC 479', decided on September 5, 2011, the Supreme Court, after looking into many earlier judgments, has laid down parameters, in which interference can be made in a judgment of acquittal, by observing as under:
"An order of acquittal is to be interfered with only when there are "compelling and substantial reasons", for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference. When the trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts etc., the appellate court is competent to reverse the decision of the trial Court depending on the materials placed."
Similarly, in the case of 'State of Rajasthan v. Shera Ram CRM-A No. 99-MA of 2013 -13- alias Vishnu Dutta, (2012) 1 SCC 602', the Hon'ble Supreme Court has observed as under:-
"7. A judgment of acquittal has the obvious consequence of granting freedom to the accused. This Court has taken a consistent view that unless the judgment in appeal is contrary to evidence, palpably erroneous or a view which could not have been taken by the court of competent jurisdiction keeping in view the settled canons of criminal jurisprudence, this Court shall be reluctant to interfere with such judgment of acquittal.
8. The penal laws in India are primarily based upon certain fundamental procedural values, which are right to fair trial and presumption of innocence. A person is presumed to be innocent till proven guilty and once held to be not guilty of a criminal charge, he enjoys the benefit of such presumption which could be interfered with only for valid and proper reasons. An appeal against acquittal has always been differentiated from a normal appeal against conviction. Wherever there is perversity of facts and/or law appearing in the judgment, the appellate court would be within its jurisdiction to interfere with the judgment of acquittal, but otherwise such interference is not called for."
Thereafter, in the above case a large number of judgments were discussed and then it was opined as under:-
"10. There is a very thin but a fine distinction between an appeal against conviction on the one hand and acquittal on the other. The preponderance of judicial opinion of this Court is that there is no substantial difference between an appeal against conviction and an appeal against acquittal except that while dealing with an appeal against acquittal the Court keeps in view the position that the presumption of innocence in CRM-A No. 99-MA of 2013 -14- favour of the accused has been fortified by his acquittal and if the view adopted by the High Court is a reasonable one and the conclusion reached by it had its grounds well set out on the materials on record, the acquittal may not be interfered with. Thus, this fine distinction has to be kept in mind by the Court while exercising its appellate jurisdiction. The golden rule is that the Court is obliged and it will not abjure its duty to prevent miscarriage of justice, where interference is imperative and the ends of justice so require and it is essential to appease the judicial conscience."
Counsel for the applicant-appellant has failed to show any error in law on the basis of which interference can be made by this Court in the judgment under challenge.
Accordingly, the application is dismissed.
(Jasbir Singh) Acting Chief Justice (Rakesh Kumar Jain) Judge 6.5.2013 Ashwani